Abiodun Agbetu & Anor V. Chief Lawson Akinboyo & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High court of Ondo state, sitting at Okitipupa delivered on 16/11/2005 wherein the court granted all the plaintiffs’/respondents’ claims for declaration of title, damages and injunction and dismissed the defendants’/appellants’ counter claim.

Being dissatisfied with the decision, the appellants filed a notice of appeal containing two grounds of appeal. With leave of this court they subsequently filed an amended notice of appeal containing six grounds of appeal. Both parties duly filed and exchanged briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 20/9/2012, ADEMOLA ADEYEMO ESQ., learned counsel for the appellants adopted and relied on the appellants’ brief dated and filed on 11/7/2007. It was deemed properly filed on 16/6/2010. He also adopted and relied on the reply brief dated 18/4/2011 but deemed filed on 19/4/2011. He urged the court to allow the appeal. S. ISUMEDE ESQ., learned counsel for the respondents adopted and relied on the respondents’ brief dated 6/8/10 but deemed filed on 11/4/2011. He drew the court’s attention to a preliminary objection filed on behalf of the respondents challenging the appellants’ reply brief for being incompetent on the ground that the said reply raises new issues and re-argues issues already canvassed in the appellants’ main brief. He urged the court to discountenance the reply brief and dismiss the appeal.

The appellant raised the following issues for the determination of this appeal:

1. Whether the learned trial Judge’s refusal to grant an adjournment on the 4th day of October 2005 to enable counsel to the parties to deliver their final addresses before delivering judgment complies with Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria. (Ground 2).
2. Whether the pieces of traditional evidence of the plaintiffs/respondents are cogent enough to support the decision of the learned trial Judge that the plaintiffs/respondents

(a) proved a better title;

(b) are the ones in possession of the land in dispute; and

(c) are therefore entitled to the reliefs sought in their claim, (Grounds 3, 5 & 6).

3. whether the learned trial Judge properly applied the rule in Kojo II vs Bonsie (1957) W.L.R. 1223 to the instant case. (Ground 4).

On their part, the respondents formulated two issues for determination thus:

1. Whether Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria could be invoked as to annul or void the judgment of the trial court.
2. Whether, having regard to the totality of oral and documentary evidence, the trial Judge rightly entered judgment in favour of the respondents.

Having carefully examined the issues formulated by both parties, I am of the view that the two issues formulated by the respondents cover all the issues in contention in this appeal and are adequate to dispose of same. The appeal shall therefore be determined on the two issues formulated by the respondents.

Before going into the merits of the appeal it is necessary to briefly state the facts that gave rise to the appeal, By their 3rd amended statement of claim dated 20/3/2003, the respondents herein as plaintiffs suing for themselves and on behalf of the Odofin Ofilo family, sought the following reliefs against the appellants as defendants (for themselves and on behalf of the Liliken family):

1. A declaration that the plaintiffs are entitled to the grant of statutory Right of occupancy in respect of that piece or parcel of land situate, lying and being at Agirifon, Ilutitun Osoro, Okitipupa Local Government Ondo state which said land is verged RED in survey plan no. OD/0236/2003/001 dated prepared by Femi Falade, licensed surveyor and attached to the 3rd amended statement of claim.
2. N50, 000.00 general damages for trespass.
3. Perpetual Injunction restraining the defendants, their servants, agents and privies from further entry and trespass on the said land.

In reaction to the claim the defendants filed a further amended statement of defence and in addition filed a counter claim seeking the following reliefs:

1. A DECLARATION that the land in dispute situate, lying and being at Agirifon/Moribodo belongs from time immemorial to the Liliken family of Agirifon, and that they are entitled to be granted Statutory Right of Occupancy over the said land.
2. PERPETUAL INJUNCTION restraining the plaintiffs, by themselves, their agents, servants, privies or grantees or otherwise howsoever from disturbing the counter-claimants lawful and peaceful possession and enjoyment of the land, the subject matter of this action.
3. PERPETUAL INJUNCTION restraining the plaintiffs and their privies to this counter claim from alienating any part portion of the land to third parties.
4. Further and other reliefs.

The plaintiffs filed a reply to the statement of defence and defence to the counter claim.

This case was originally heard and determined by the court below coram S.A. Ajayi, J (retired). An appeal to this court against the judgment delivered was successful. The Court of Appeal by its judgment delivered on 4/7/97 remitted the case back to the High Court for trial de novo before a Judge other than Ajayi, J. The court ordered accelerated hearing of the suit.

The facts of the case as can be gleaned from the record of proceedings and the briefs of the respective parties is that the respondents claimed that their ancestor, one Omojuwa migrated from Ile-Ife more than 600 years ago and after moving to several places eventually settled at a place called Moribodo otherwise known as Ode-Osoro. Omojuwa had three children: Jagbedo, Monogbe and Jibulu.